Citation Nr: 0315603
Decision Date: 07/11/03 Archive Date: 07/17/03
DOCKET NO. 02- 08 468 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for sarcoidosis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
REMAND
The veteran served on active duty in the Army from April 1965
to March 1968.
This case is before the Board of Veterans Appeals (Board) on
appeal from a June 2001 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
Pursuant to 38 U.S.C.A. §§ 7101(c) and 7107(c), I have been
designated by the Chairman of the Board of Veterans' Appeals
as an acting Veterans Law Judge to conduct the hearing on
appeal, which was held in March 2003 in Washington, D. C. A
transcript of the hearing is of record.
There have been significant procedural changes in the law
that need to be addressed before the Board can decide the
merits of the claim. In 2000, the Veterans Claims Assistance
Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103,
5103A, was enacted and modified VA's duty to notify and duty
to assist a claimant in developing the information and
evidence necessary to substantiate a claim. As no document
of record meets the specific notice requirements erected by
the VCAA, including the notice of 38 C.F.R. § 3.159,
implementing the VCAA, provided to the veteran at the March
2003 hearing, further development as to the duty to notify is
needed. Quartucccio v. Principi, 16 Vet. App. 183 (2002);
see Disabled Am. Veterans v., Sec'y of Veteran Affairs, 327
F.3d 1339 (Fed. Cir. 2003) (holding that the "30-day
response period" in context of the duty to notify under the
VCAA is invalid because it is contrary to 38 U.S.C.A. §
5103(b), which provides a claimant one year to submit
evidence). And further evidentiary development is needed to
comply with the duty to assist.
Therefore, this case is REMANDED to the RO for the following
action:
1. Ensure compliance with the duty to
notify and the duty to assist provisions
of the Veterans Claims Assistance Act of
2000, codified in part at 38 U.S.C.A. §§
5103, 5103A. The duty to notify includes
notice that VA will obtain records of
Federal agencies, including service
medical records and VA records, the
veteran identifies; and that he is
responsible for identifying and submitting
records from State or local governments,
private health-care providers, current or
former employers and other non-Federal
governmental sources, unless he signs a
release, which would authorize VA to
obtain them. In the notice, ask the
veteran if there are any other health-care
providers, VA or non-VA, not previously
identified, who have treated him for
sarcoidosis since service.
2. Obtain the clinical records of the
Army Hospital at Fort Sam Houston, Texas,
for treatment of a cyst in July 1965.
3. Obtain Dr. Mitchell's medical opinion,
dated February 11, 2002, referred to in
the April 2002 statement of the case,
which is not in the file.
4. Obtain Social Security Administration
records.
5. Obtain the medical records, including
notes, discharge summaries, consults, lab
(surgical pathology reports associated
with the removal of a right elbow mass in
September 1972 at the Cleveland VAMC and
removal of an arm mass in 1972 and 1973 at
the Cincinnati VAMC), imaging, and
procedures, for treatment for any lung or
skin condition from March 1968 to December
1973 at the Cleveland VAMC; from 1972 to
1973 from the Cincinnati VAMC; from
January 1975 to December 1979 at the
Nashville VAMC; and from January 1975 to
December 1984 at the Huntsville and
Birmingham VAMCs.
6. After the above development is
completed, adjudicate the claim. If the
benefit sought remains denied, the veteran
and his representative should be provided
a supplemental statement of the case
(SSOC). The veteran's response to the
SSOC is optional and it is not required
for perfection of the appeal. After the
60-day period for the response has ended
or the veteran indicates a desire to
proceed with his appeal without waiting
for the 60 day-period, the case should be
returned to the Board.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
GEORGE E. GUIDO JR.
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).